Citation Nr: 1000338
Decision Date: 01/04/10 Archive Date: 01/14/10
DOCKET NO. 94-23 506 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Whether new and material evidence has been presented to
reopen a claim of service connection for a back disability.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
3. Entitlement to service connection for hypertension, to
include as secondary to PTSD.
4. Entitlement to service connection for tinnitus.
5. Entitlement to service connection for a vascular disorder
of the feet, secondary to service-connected bilateral pes
planus with plantar calluses and dorsal corns.
6. Entitlement to an increased evaluation for bilateral pes
planus with plantar calluses and dorsal corns, currently
evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. Connolly, Counsel
INTRODUCTION
The Veteran had active service from November 1967 to June
1969. He had military service in the Republic of Vietnam
from June 1968 to June 1969.
This appeal arises from rating decisions of November 1993 and
January 1994 of the Department of Veterans Affairs (VA)
Regional Office (RO) in Detroit, Michigan, which respectively
denied entitlement to service connection for hypertension and
PTSD. The appeal also arises from a February 1999 rating
decision that denied entitlement to an increased evaluation
for bilateral pes planus with plantar calluses and dorsal
corns; and service connection for a back disability and
tinnitus, and secondary service connection for a vascular
disability of the feet resulting from service-connected pes
planus.
The Veteran testified at a hearing at a Travel Board hearing
before the undersigned in May 2004. In February 2005, the
Board remanded this case.
As previously noted by the Board, several issues have been
raised. Specifically, the issues of entitlement to service
connection for a psychiatric disability, other than PTSD;
service connection for bilateral hip disabilities secondary
to service-connected pes planus; service connection for
bilateral hallux valgus secondary to service-connected pes
planus; and service connection for arteriosclerotic heart
disease and abdominal aortic/dissecting aneurysm secondary to
service-connected diabetes mellitus. These matters are
referred to the RO for the appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Unfortunately, a remand is required in this case. Although
the Board sincerely regrets the additional delay, it is
necessary to ensure that there is a complete record upon
which to decide the Veteran's claim so that the Veteran is
afforded every possible consideration.
In the Board's prior remand decision, the Board requested
various development including contacting the Social Security
Administration (SSA) and VA medical facilities for records.
This requested development was completed. However,
additional development was not undertaken in its entirety.
In light of the foregoing, and as pointed out by the
Veteran's representative, further action is necessary in this
case, in accordance with the previous Board remand
directives. See Stegall v. West, 11 Vet. App. 268 (1998) (as
a matter of law, a remand by the Board confers on the veteran
the right to compliance with the remand orders).
Regarding the issue of service connection for a back
disability, the Board noted in the prior remand decision that
this matter had previously been denied by the RO in a letter
issued to the veteran in December 1987. He did not express
any timely disagreement to this determination. Therefore, it
appeared that this decision is now final. See 38 U.S.C.A. §
7105; 38 C.F.R. § 3.104, 20.200. On remand, the AOJ was
instructed to initially determine whether the provisions of
38 C.F.R. § 3.156 were applicable to this claim. If so, the
appropriate duty to assist letter regarding the issue of the
submission of new and material evidence was to be sent to the
Veteran. See 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b).
Thereafter, while a July 2009 supplemental statement of the
case (SSOC) indicated that new and material evidence had not
been submitted to reopen the claim, the Veteran was not sent
the appropriate VCAA notice.
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United
States Court of Appeals for Veterans Claims (the Court)
addressed directives consistent with the Veterans Claims
Assistance Act (VCAA) with regard to new and material
evidence.
The Court stated that in order to successfully reopen a
previously and finally disallowed claim, the law requires the
presentation of a special type of evidence-evidence that is
both new and material. The terms "new" and "material"
have specific, technical meanings that are not commonly known
to VA claimants. Because these requirements define
particular types of evidence, when providing the notice
required by the VCAA it is necessary, in most cases, for VA
to inform claimants seeking to reopen a previously and
finally disallowed claim of the unique character of evidence
that must be presented. This notice obligation does not
modify the requirement that VA must provide a claimant notice
of what is required to substantiate each element of a service
connection claim. See Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
In other words, VA must notify a claimant of the evidence and
information that is necessary to reopen the claim and VA must
notify the claimant of the evidence and information that is
necessary to establish his entitlement to the underlying
claim for the benefit sought by the claimant.
In addition, VA's obligation to provide a claimant with
notice of what constitutes new and material evidence to
reopen a service connection claim may be affected by the
evidence that was of record at the time that the prior claim
was finally denied. In order to satisfy the legislative
intent underlying the VCAA notice requirement to provide
claimants with a meaningful opportunity to participate in the
adjudication of their claims, the VCAA requires, in the
context of a claim to reopen, the Secretary to look at the
bases for the denial in the prior decision and to respond
with a notice letter that describes what evidence would be
necessary to substantiate that element or elements required
to establish service connection that were found insufficient
in the previous denial. Therefore, the question of what
constitutes material evidence to reopen a claim for service
connection depends on the basis on which the prior claim was
denied.
In this case, the claimant was not provided specific notice
of what constitutes material evidence in the case at hand.
The failure to provide notice of what constitutes material
evidence would generally be the type of error that has the
natural effect of producing prejudice because it would
constitute a failure to provide a claimant notice of a key
element of what it takes to substantiate a claim to reopen.
Without such notice, a claimant effectively would be deprived
of an opportunity to participate in the adjudication process
because she or he would not know what evidence was needed to
reopen her or his claim. Accordingly, this case must be
remanded for the claimant to be furnished specific
notification of the reason for the prior final denial and of
what constitutes material evidence.
Regarding the issue of service connection for PTSD, the
Veteran claimed that his current PTSD is a result of a number
of stressors he experienced during his service in Vietnam
which were enumerated in the Board's prior remand decision.
On remand, the AMC contacted the U. S. Armed Services Center
for Research of Unit Records (CURR) and requested that they
attempt to verify the following alleged in-service stressors,
to include: 1) witnessing enemy soldiers being interrogated
on a helicopter and then pushed out to their deaths, 2) being
assigned to guard 12 prisoners of war and having to kill one
of them when they tried to attack him, and 3) witnessing an
elderly Vietnamese man kill himself and other civilians with
a grenade. CURR provided a response in June 2006. However,
the July 2009 SSOC indicated that no additional pertinent
evidence was received regarding this issue. Thus, the new
evidence was not addressed in the SSOC.
In addition, the Board previously determined that the claimed
disabilities required medical evaluations. However, the
Veteran is incarcerated. The Chief Medical Officer for the
Michigan Department of Corrections indicated that prisoners
requesting off-site healthcare must do so at their own
expense. The AMC attempted to have personnel from the VA
Medical Center perform an on-site examination, but the Chief
of Compensation and Pension indicated that examiners will not
go off-site to a prison to do examinations. The Veteran's
representative asserted that the appropriate duty to assist
procedures were not met with regard to this matter and in
compliance with Bolton v. Brown, 8 Vet. App. 185, 191 (1995).
The duty to assist incarcerated Veterans requires VA to
tailor its assistance to meet the peculiar circumstances of
confinement, as such individuals are entitled to the same
care and consideration given to their fellow Veterans. Wood
v. Derwinski, 1 Vet. App. 190, 193 (1991); Bolton.
VA does not have the authority to require a correctional
institution to release a Veteran so that VA can provide him
the necessary examination at the closest VA medical facility.
See, e.g., 38 U.S.C.A. § 5711. Nevertheless, VA's duty to
assist an incarcerated Veteran includes: (1) attempting to
arrange transportation of the claimant to a VA facility for
examination; (2) contacting the correctional facility and
having their medical personnel conduct an examination
according to VA examination work sheets; or (3) sending a VA
or fee-basis examiner to the correctional facility to conduct
the examination. See Bolton, 8 Vet. App. at 191.
The Court has cautioned "those who adjudicate claims of
incarcerated veteran to be certain that they tailor their
assistance to the peculiar circumstances of confinement. Such
individuals are entitled to the same care and consideration
given to their fellow veterans." Bolton. In Bolton, the
Court remanded a case where the RO claimed an inability to
get a fee-basis physician to conduct an examination at a
correctional facility. In that case, further efforts were
deemed necessary to attempt to examine the veteran in that
case. Id.
The VA Adjudication Procedure Manual contains a provision for
scheduling examinations of incarcerated veterans. The manual
calls for the AOJ or the local Veterans Health Administration
(VHA) Medical Examination Coordinator to confer with prison
authorities to determine whether the Veteran should be
escorted to a VA medical facility for examination by VHA
personnel. If that is not possible, the Veteran may be
examined at the prison by: (1) VHA personnel; (2) prison
medical providers at VA expense; or (3) fee-basis providers
contracted by VHA. See M21-1MR, Part III.iv.3.A.11.d (2008).
The Board finds that in light of VA's duty to assist, the AMC
should reschedule the Veteran for examination(s) in
connection with his claims on appeal. 38 U.S.C.A.
§ 5103A(d). Because of the Veteran's status, the typical
procedures for scheduling an examination are not likely going
to be adequate in this case. Nevertheless, the Court has
cautioned "those who adjudicate claims of incarcerated
veterans to be certain that they tailor their assistance to
the peculiar circumstances of confinement. Such individuals
are entitled to the same care and consideration given to
their fellow veterans." Bolton, 8 Vet. App. at 191 (citing
Wood, 1 Vet. App. at 193).
Therefore, in order to ensure that the record is fully
developed, this case is REMANDED to the VBA AMC for the
following:
1. Review the record and ensure
compliance with all notice and assistance
requirements set forth in the VCAA and
subsequent interpretive authority as to
the issue of whether new and material
evidence has been presented to reopen a
claim of service connection for a back
disability. A notice consistent with
38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1) must:
(1) inform the claimant about the
information and evidence not of record
that is necessary to substantiate the
claim; (2) inform the claimant about the
information and evidence that VA will
seek to provide; and (3) inform the
claimant about the information and
evidence the claimant is expected to
provide.
The VCAA notice should include an
explanation as to the information or
evidence needed to establish a disability
rating and effective date for the
claims(s) on appeal, as outlined by the
Court in Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006).
The VCAA notice should include specific
notice of why the claim was previously
denied in December 1987 and what
constitutes material evidence for the
purpose of reopening the claim. See Kent
v. Nicholson, 20 Vet. App. 1 (2006).
2. Review the response from CURR
regarding the Veteran's alleged inservice
stressors which he claims resulted in
PTSD. Make a determination on whether
any alleged in-service stressors are
corroborated by the evidence of record.
Make a written report for the record on
its determination of whether any
additional in-service stressors have been
corroborated and provide the psychiatric
examiner (conducting the examination
requested below) with an itemized list of
these verified stressors.
3. Take all reasonable measures to
schedule the Veteran for the examinations
requested below. If the Veteran remains
incarcerated, confer with prison
authorities to determine whether the
Veteran may be escorted to a VA medical
facility for examination or if an
examination at the prison is feasible.
See M21-1MR, Part III.iv.3.A.11.d. If
that is not possible, the Veteran may be
examined at the prison by: (1) VHA
personnel; (2) prison medical providers
at VA expense; or (3) fee-basis providers
contracted by VHA. Determine which is
the most feasible option.
4. Thereafter, the Veteran should be
afforded a psychiatric examination. The
purpose of this examination is to
determine the existence and etiology of
the Veteran's current PTSD. The claims
folder must be sent to the examiner for
review. A copy of this remand must also
be provided to the examiner. Please
provide the examiner with the following
instructions:
The examiner is asked to indicate that he
or she has reviewed the claims folder.
In addition, the examiner should review
the Board's discussion of the Veteran's
medical history contained in the provided
remand. All necessary tests should be
conducted and the examiner should review
the results of any testing prior to
completion of the examination report.
The Veteran has reported a number of
alleged stressors from his military
service. The Board has determined that
the following stressors have been
corroborated by the evidence of record:
1) experiencing sniper, small arms, and
mortar attack while stationed at forward
base camps in Vietnam, 2) witnessing
severely wounded and dying soldiers
during a brief hospital treatment for his
pes planus, and 3) traveling on a
helicopter with dead bodies contained in
body bags. Any other verified stressors
per the CURR report should also be
enumerated (accompanying these
instructions should be a determination by
the AMC if the record has verified any
additional stressors).
Initially, the examiner must determine
whether the Veteran currently has PTSD.
Then the examiner should determine
whether the corroborated in-service
stressors were sufficient to produce
PTSD. In this regard, the examiner is
instructed to consider only the stressors
identified by the Board and AMC as
verified by the record. The examiner
should utilize the American Psychiatric
Association's Diagnostic and Statistical
Manual of Mental Disorders (4th ed. 1994)
(DSM-IV) in arriving at diagnoses and
identify all existing psychiatric
diagnoses. If PTSD is diagnosed, the
examiner must explain whether and how
each of the diagnostic criteria is or is
not satisfied. Also, if PTSD is
diagnosed, the examiner must identify the
stressor(s) supporting the diagnosis.
Additionally, if the examiner notes the
presence of any coexistent psychiatric
disability, an opinion should be provided
as to whether such psychiatric disability
is less likely than not; at least as
likely as not; or more likely than not
related to service.
A complete rationale must be given for
any opinion expressed and the foundation
for all conclusions should be clearly set
forth. The report of the psychiatric
examination should be associated with the
Veteran's claims folder.
5. The Veteran should be afforded a
cardiovascular examination to determine
the nature and etiology of any current
cardiovascular disability including
hypertension. Any indicated tests should
be accomplished. The examiner should
review the claims folder prior to
examination. The examiner should provide
an opinion as to whether it is more
likely than not, less likely than not, or
at least as likely as not, that any
current cardiovascular disability
including hypertension had its clinical
onset during service or is related to any
in-service disease, event, or injury.
Further, based on a review of the claims
file and any examination findings, the
examiner should provide an opinion as to
whether it is more likely than not, less
likely than not, or at least as likely as
not, that that any current cardiovascular
disability including hypertension is
proximately due to, or the result of, the
PTSD. The examiner should also provide
an opinion as to whether it is more
likely than not, less likely than not, or
at least as likely as not, that any
current cardiovascular disability
including hypertension is permanently
aggravated by PTSD.
The examiner should provide a complete
rationale for all opinions expressed and
conclusions reached.
6. The Veteran should be afforded a
spine examination to determine the nature
and etiology of any current back
disability. Any indicated tests,
including X-rays if indicated, should be
accomplished. The examiner should review
the claims folder prior to examination.
The examiner should provide an opinion as
to whether it is more likely than not,
less likely than not, or at least as
likely as not, that any current back
disability had its clinical onset during
service or is related to any in-service
disease, event, or injury.
Further, based on a review of the claims
file and any examination findings, the
examiner should provide an opinion as to
whether it is more likely than not, less
likely than not, or at least as likely as
not, that that any current back
disability is proximately due to, or the
result of, the service-connected
bilateral pes planus with plantar
calluses and dorsal corns. The examiner
should also provide an opinion as to
whether it is more likely than not, less
likely than not, or at least as likely as
not, that any current back disability is
permanently aggravated by the Veteran's
service-connected bilateral pes planus
with plantar calluses and dorsal corns.
The examiner should provide a complete
rationale for all opinions expressed and
conclusions reached.
7. Thereafter, the Veteran should be
afforded an ear examination to determine
the nature and etiology of any current
tinnitus disability. Any indicated tests
should be accomplished. The examiner
should review the claims folder prior to
examination. The examiner should provide
an opinion as to whether it is more
likely than not, less likely than not, or
at least as likely as not, that any
current tinnitus disability had its
clinical onset during service or is
related to any in-service disease, event,
or injury. The Veteran has testified
that he developed tinnitus during his
military service in Vietnam as an
artilleryman.
The examiner provide complete rationale
for all conclusions reached.
8. The Veteran should be afforded a
vascular examination to determine the
nature and etiology of any current
vascular disorder of the feet. Any
indicated tests should be accomplished.
The examiner should review the claims
folder prior to examination. Based on a
review of the claims file and any
examination findings, the examiner should
provide an opinion as to whether it is
more likely than not, less likely than
not, or at least as likely as not, that
that any current vascular disorder of the
feet is proximately due to, or the result
of, the service-connected bilateral pes
planus with plantar calluses and dorsal
corns. The examiner should also provide
an opinion as to whether it is more
likely than not, less likely than not, or
at least as likely as not, that any
current vascular disorder of the feet is
permanently aggravated by the Veteran's
service-connected bilateral pes planus
with plantar calluses and dorsal corns.
The examiner should provide a complete
rationale for all opinions expressed and
conclusions reached.
9. The Veteran should be afforded a feet
examination to determine the nature and
extent of his service-connected bilateral
pes planus with plantar calluses and
dorsal corns. Any indicated tests should
be accomplished. The examiner should
review the claims folder prior to
examination. The examiner should
specifically indicate if the Veteran has
marked pronation, extreme tenderness of
plantar surfaces of the feet, marked
inward displacement and severe spasm of
the tendo achilles on manipulation, not
improved by orthopedic shoes or
appliances.
Any opinions expressed by the examiner
must be accompanied by a complete
rationale.
10. Thereafter, the AMC should review
the claims file to ensure that all of the
foregoing requested development has been
completed. In particular the AMC should
review the requested examination reports
and required medical opinions to ensure
that they are responsive to and in
complete compliance with the directives
of this remand and if the are not, the
AMC should implement corrective
procedures.
11. The AMC should then readjudicate the
Veteran's claims on appeal, with
application of all appropriate laws and
regulations and consideration of any
additional information obtained. In
addition, the AMC should determine
whether the provisions of 38 U.S.C.A. §
1154(b) are applicable to the service
connection claims, including the claim
for service connection for PTSD.
If any decision with respect to these
claims remains adverse to the Veteran, he
and his representative should be
furnished a SSOC and afforded a
reasonable period of time within which to
respond thereto. The SSOC must contain
notice of all relevant actions taken on
the claim for benefits, to include a
summary of the evidence and applicable
law and regulations pertinent to the
issues currently on appeal.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The appellant has the right
to submit additional evidence and argument on the matter or
matters the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2009).
_________________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2009), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2009).